Supreme Court Nominations

270 Pages·2009·1.63 MB·English

by  Betsy Palmer

S C N
UPREME OURT OMINATIONS

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S C N
UPREME OURT OMINATIONS

BETSY PALMER
EDITOR

Nova Science Publishers, Inc.
New York
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LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA
Supreme Court nominations (updated) / editor, Betsy Palmer.
p. cm.
Includes index.
ISBN 978-1-61728-588-2 (E-Book)
1. United States. Supreme Court.--Officials and employees--Selection and appointment--History.
2. Judges--Selection and appointment--United States--History. I. Palmer, Betsy (Elizabeth A.)
KF8742.S925 2009
347.73'2634--dc22
2009034193

Published by Nova Science Publishers, Inc. (cid:30)  New York
CONTENTS

Preface vii
Chapter 1 Supreme Court Appointment Process: Roles of the President,
Judiciary Committee and Senate 1
Denis Steven Rutkus
Chapter 2 Supreme Court Nominations Not Confirmed, 1789-2007 59
Henry B. Hogue
Chapter 3 Supreme Court Nominations: Senate Floor Procedure and Practice,
1789-2006 89
Richard S. Beth and Betsy Palmer
Chapter 4 Supreme Court Nominations, 1789 – 2005: Actions by the Senate,
the Judiciary Committee, and the President 131
Denis Steven Rutkus and Maureen Bearden
Chapter 5 Speed of Presidential and Senate Actions on Supreme Court
Nominations, 1900-2005 175
R. Sam Garrett and Denis Steven Rutkus
Index 247

PREFACE

The appointment of a Supreme Court Justice is an event of major significance in
American politics. Each appointment is important because of the enormous judicial power the
Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments
are usually infrequent, as a vacancy on the nine member Court may occur only once or twice,
or never at all, during a particular President’s years in office. Under the Constitution, Justices
on the Supreme Court receive lifetime appointments. Such job security in the government has
been conferred solely on judges and, by constitutional design, helps insure the Court’s
independence from the President and Congress.
The procedure for appointing a Justice is provided for by the Constitution in only a few
words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President
“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ...
Judges of the supreme Court.” The process of appointing Justices has undergone changes over
two centuries, but its most basic feature — the sharing of power between the President and
Senate — has remained unchanged: To receive lifetime appointment to the Court, a candidate
must first be nominated by the President and then confirmed by the Senate. Although not
mentioned in the Constitution, an important role is played midway in the process (after the
President selects, but before the Senate considers) by the Senate Judiciary Committee.
On rare occasions, Presidents also have made Court appointments without the Senate’s
consent, when the Senate was in recess. Such “recess appointments,” however, were
temporary, with their terms expiring at the end of the Senate’s next session. The last recess
appointments to the Court, made in the 1950s, were controversial because they bypassed the
Senate and its “advice and consent” role.
The appointment of a Justice might or might not proceed smoothly. From the first
appointments in 1789, the Senate has confirmed 122 out of 158 Court nominations. Of the 36
unsuccessful nominations, 11 were rejected in Senate roll-call votes, while nearly all of the
rest, in the face of committee or Senate opposition to the nominee or the President, were
withdrawn by the President or were postponed, tabled, or never voted on by the Senate.
Over more than two centuries, a recurring theme in the Supreme Court appointment
process has been the assumed need for excellence in a nominee. However, politics also has
played an important role in Supreme Court appointments. The political nature of the
appointment process becomes especially apparent when a President submits a nominee with
controversial views, there are sharp partisan or ideological differences between the President
viii Betsy Palmer
and the Senate, or the outcome of important constitutional issues before the Court is seen to
be at stake.
Chapter 1 - The appointment of a Supreme Court Justice is an event of major significance
in American politics. Each appointment is important because of the enormous judicial power
the Supreme Court exercises as the highest appellate court in the federal judiciary.
Appointments are usually infrequent, as a vacancy on the ninemember Court may occur only
once or twice, or never at all, during a particular President’s years in office. Under the
Constitution, Justices on the Supreme Court receive lifetime appointments. Such job security
in the government has been conferred solely on judges and, by constitutional design, helps
insure the Court’s independence from the President and Congress.
The procedure for appointing a Justice is provided for by the Constitution in only a few
words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President
“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ...
Judges of the supreme Court.” The process of appointing Justices has undergone changes over
two centuries, but its most basic feature — the sharing of power between the President and
Senate — has remained unchanged: To receive lifetime appointment to the Court, a candidate
must first be nominated by the President and then confirmed by the Senate. Although not
mentioned in the Constitution, an important role is played midway in the process (after the
President selects, but before the Senate considers) by the Senate Judiciary Committee.
On rare occasions, Presidents also have made Court appointments without the Senate’s
consent, when the Senate was in recess. Such “recess appointments,” however, were
temporary, with their terms expiring at the end of the Senate’s next session. The last recess
appointments to the Court, made in the 1950s, were controversial because they bypassed the
Senate and its “advice and consent” role.
The appointment of a Justice might or might not proceed smoothly. From the first
appointments in 1789, the Senate has confirmed 122 out of 158 Court nominations. Of the 36
unsuccessful nominations, 11 were rejected in Senate roll-call votes, while nearly all of the
rest, in the face of committee or Senate opposition to the nominee or the President, were
withdrawn by the President or were postponed, tabled, or never voted on by the Senate.
Over more than two centuries, a recurring theme in the Supreme Court appointment
process has been the assumed need for excellence in a nominee. However, politics also has
played an important role in Supreme Court appointments. The political nature of the
appointment process becomes especially apparent when a President submits a nominee with
controversial views, there are sharp partisan or ideological differences between the President
and the Senate, or the outcome of important constitutional issues before the Court is seen to
be at stake.
For a listing of all nominations to the Court and their outcomes, see CRS Report
RL33225, Supreme Court Nominations, 1789-2006: Actions by the Senate, the Judiciary
Committee, and the President.
Chapter 2 - Of the 158 nominations to the Supreme Court of the United States from 1789
through 2007, 36 were not confirmed by the Senate. The 36 nominations represent 31
individuals whose names were sent forward to the Senate by Presidents (some individuals
were nominated more than once). Of the 31 individuals who were not confirmed the first time
they were nominated, however, six were later nominated again and confirmed. The Supreme
Court nominations discussed here were not confirmed for a variety of reasons, including
Senate opposition to the nominating President, nominee’s views, or incumbent Court;